What Libby Doesn't Want You to Know

by emptywheel

Jeff has kindly sent me two motions from Libby on what he'd like to prevent the government from using as evidence at trial. There are two things, so far, that Libby doesn't want you to know:

• He doesn't want you to think that his and Dick's insta-declassification of the NIE is illegal
• He doesn't want you to know that some reporters thought he might not want them to testify
• He doesn't want the government to offer evidence of Plame's status [I'll get to this later--Libby at once implies she was not undercover, but then demands the government not introduce any evidence related to it, the former is a cheap move given the context but the latter is fair]

Insta-declassification

This is, IMO, a simple argument and frankly a red herring.Libby made up this elaborate lie that his July 8 meeting with Judy was to leak the NIE. And now that he has to live with that lie, he wants to make sure Fitzgerald doesn't suggest to the jury that he illegally leaked classified information when he leaked the NIE.

That's not where Fitzgerald is going with the NIE stuff. So I fully expect the court will grant this motion.

That said, I find it, um, curious that Libby's team is now backing off some public assertions. The motion emphasized Presidential insta-declassification.

The government has never suggested--nor could it--that the President lacks the power to authorize the disclosure of previously classified information as he sees fit.

No mention of Vice President Dick's power to insta-declassify. I find that curious since in the first go-around, it was Dick who did the declassifying. It wasn't until Libby asked Dick to check with the President to make sure that outing a spy declassifying selective bits of information was okay that the President got involved. Gosh. I wonder why they're downplaying Dick here?

Now, onto the reporters..
.

Discouraging reporters from testifying

This one, I imagine, will be more contentious. You see, Libby doesn't want the jury to know that Judy Miller went to jail for 85 days until, under threat of an additional obstruction charge, Libby gave her a big Aspen kiss and told her to testify. More specifically, Libby doesn't want you to know that reporters refused to testify, made motions to quash grand jury subpoenes, got declared in contempt of court, or, in Judy's case, went to jail. As Libby's team explains:

The government has indicated that it plans to argue at trial that Mr. Libby felt free to lie about his conversations with reporters because he expected that they would not cooperate with the investigation. The defense is concerned that the government will attempt to use the evidence we seek to exclude as part of an unfair and misleading effort to prop up this implausible argument.

Whew! Fighting words! Implausible prop, huh?? Of course, that's just the beginning of the BS they're throwing (guess they're cross about Fitz embarrassing their memory expert, huh?).

Then Libby launches into a series of disingenuous claims. First, Libby claims that,

The reporters who resisted testifying grounded their legal challenges on the First Amendment, reporters' privilege, and principles of journalistic ethics.

Sure, in some cases that's true (as with Walter Pincus, for example). But it's not true for the key journalistic witness in this case, Timmy Russert. As I've shown, Russert actually grounded his legal challenge in a rather self-important defense of access to the big beltway cocktail weenies. It was a pretty naked attempt to defend access, not speech (particularly since Fitzgerald wanted to learn what Russert said during a conversation in which he was playing the role of a manager).

Libby also dismisses Matt Cooper's totally inconsistent approach to source protection (in which he asked Libby for a waiver but not Karl, at least not until Luskin blabbed his mouth hubristically) with a footnote, saying Cooper's inconsistency is "entirely unrelated to Mr. Cooper's testimony regarding Mr. Libby." I'll grant him the point, but Cooper's inconsistent approach (and Time's rationale not to ask Karl for a waiver because it was election season) sure gives lie to the sanctity of the First Amendment.

Libby's next disingenuous claim has to do with his "voluntary waivers." Libby says he released everyone with not pressure. But then he reveals this bit.

During the second interview [which Libby has just reminded us took place on November 26, 2003], the FBI asked Mr. Libby to release reporters it wanted to question from any promises of confidentiality they had made to him,

[snip]

Consistent with his desire to cooperate fully with the investigation, Mr. Libby signed a waiver on January 5, 2004.

Call me crazy, but when I ask someone to do something, and they don't comply for well over a month, I don't consider that cooperation. I consider it stalling. And news reports described some really drag out fights over this issue in Fall 2003. So I suspect the delay was not Libby's only sign of less-than-full cooperation. Libby goes onto explain why he signed the waiver.

Mr. Libby expected that he would be exonerated by the reporters' testimony, largely because--contrary to press speculation at the time--he was not a source for Robert Novak's column mentioning Ms. Wilson's CIA employment, because he had never engaged in any effort, concerted or otherwise, to disclose Ms. Wilson's identity, and because he had no reason to believe that the conversations he had with reporters regarding Ms. Wilson were unlawful or wrongful in any respect.

Shorter Libby: I didn't expect you to investigate the other, non-Novak leaks! And I really didn't think you'd have the balls to indict me for perjury, as opposed to the IIPA violation I was so concerned about!

And while we're on the subject of Robert Novak ... there's this.

At various times during 2004, the grand jury issued subpoenas to reporters who had spoken to Mr. Libby. These reporters reacted to the subpoenas in different ways. Certain of them (such as Robert Novak, Glenn Kessler and Walter Pincus) testified without mounting legal challenges to the subpoenas they had received.

Hmmm. "Spoken to Mr. Libby ... Robert Novak." I guess that answers the questions I've been asking about whether Libby spoke to Novak in the affirmative? But here's an interesting thing. Novak has just blabbed incessantly about how the only three sources he testified about were Armitage, Turdblossom, and Harlow. But here Libby is, asserting that Novak was not only subpoenaed about Libby, but testified. For those journalists reading along here, you might want to ask Novak about this little discrepancy. And while you're asking, you might ask him whether Libby is the one who told Novak that, "Joe Wilson never worked for the CIA." Because someone who is not Armitage, Turdblossom, or Harlow did, and I'd sure like to know who that is.

Anyway, considering that Libby coached Judy to testify that he had not met with Novak, I suspect there's more to this Novak meeting than the lying douchebag has admitted.

Onto one more disingenuous statement. Libby claims that, since there were witnesses to his conversation with Cooper, it's silly to think he believed he could rely on journalists not testifying.

Mr. Libby could not have assumed that he could falsely represent the details of that conversation with abandon. This is because two other witnesses were present for that call: Cathie Martin, Assistant to the Vice President for Public Affairs, and Jenny Mayfield, Mr. Libby's personal assistant. Obviously, Mr. Libby could not have expected that either Ms. Martin or Ms. Mayfield would refuse to cooperate with the investigation or testify falsely.

Now let me interrupt for a second. WTF were Martin and Mayfield doing observing Libby's phone call? I mean, does it strike anyone that Libby didn't respond to Cooper until he had witnesses present? (You'll recall that Cooper had been waiting for a call back from Libby all day, while he was at the Country Club with friends).

Well, in any case, the statement is disingenuous because these folks generally DON'T testify on each other. But it's kind of good news, because it means Martin, who is a fairly valuable witness so far, will testify to what Libby said to Cooper. As she may also testify to the whole strategy session, which seemingly decided that Libby should make calls in her presence.

And here's some funny logic (well, it would be funny if the same logic hadn't gotten us into war in Iraq).

The reporters' legal battles, however, occurred months, if not years, after Mr. Libby supposedly concocted his cover story and repeated it to the FBI and the grand jury. These later developments could not possibly have influenced Mr. Libby's state of mind or motives during the relevant time period.

Huh. Libby says the government will argue that "he expected" reporters wouldn't testify. Obviously his state of mind after they testified would no longer be that "he expected" they wouldn't testify. At that point, his state of mind would have been--no doubt was--"holy shit, those backstabbing journalists, they sold me out!" But before they decided how they would respond, Libby could have no more than expectations.

Libby's best Aspen-buddy

Then Libby goes into his Judy story. This is interesting more for the details it includes and doesn't include than for any discussion of the life cycle of Aspen plants.

• Libby, for example, neglects to mention that Tate told Abrams how Libby had testified during early negotiations. Sure, it doesn't deal with whether or not Tate told Abrams "don't go there" when it became clear that Judy's testimony would differ from Libby's. But even Tate's sharing of testimony sure gives lie to Libby's forthrightness in this matter.
• Libby mentions that Bennett started negotiating with Libby before Fitzgerald's issued his veiled threat of an obstruction charge. I don't understand how this helps Libby's case. If it took Fitzgerald's veiled threat for Bennett's negotiations to work, how does that support the notion you're cooperating?

Libby ends up saying, basically, you didn't charge me with obstruction, so you can't introduce this stuff now.

The rest of his treatment of Judy is pretty oblique. He mentions his concern about the jury seeing the fricking Aspen love letter communications between him and Judy, but he mentions none by name.

Issuing threats

Libby must be pretty serious about this motion, because he resorts to threats to accomplish his objective. First, there's the threat to call Abrams and Bennett to the stand (not mentioning of course that if Abrams and Bennett get called, so will Tate, who has quite a bit to lose if it became clear he was coaching witness testimony). And then there's this.

The defense may even need to call the Special Counsel to testify about his discussions with counsel for Mr. Libby and counsel for reporters concerning the voluntariness of Mr. Libby's answer.

Frankly, I suspect Fitzgerald will craft a nice narrow response to this--perhaps to say he'll leave it to journalists, and also to say he can introduce the Aspen letter and the leaked GJ testimony.

But I say, while we're issuing threats, the hell with it. Leave all this information out. But call the President to the stand, and have him repeat his doubts that no one would go to jail because journalists are so good at protecting their sources. That ought to cover it.

Comments

[hauksdottir]

Good to get back to this and sink our sharp teeth into the meaty bits next to the bone!

Question... if Libby doesn't want the jury to see his letters to Judy, or whomever, is it possible that there are coded messages which haven't been teased out yet, but might jump out visually to fresh eyes? The language is stilted enough, but the arrangement of words on paper might be critical.

With suspected codes for evangelicals in Presidential speeches and suspected codes for terrorists in bin Ladin's speeches, the emphasis has been upon words as sounded... but what about visuals???

[lemond54]

I couldn't get the second link to work.

[Jeff]

Call me crazy, but when I ask someone to do something, and they don't comply for well over a month, I don't consider that cooperation. I consider it stalling.

That was the funniest part of Libby's filings. And it's especially the case when, of course, the cooperation happens six days after the special prosectutor was appointed.

Novak has just blabbed incessantly about how the only three sources he testified about were Armitage, Turdblossom, and Harlow. But here Libby is, asserting that Novak was not only subpoenaed about Libby, but testified.

Nice, even though I'm not quite sure that Novak said the only sources he testified about were those three. And while we're at it, I'm waiting for someone to ask Novak about the report that he went in to testify again some time after Rove's October 2005 appearance before the grand jury, about which Novak has been silent and misleading.

For me, the new detail that Martin and Jenny Mayfield were present for Libby's call with Matt Cooper opens up a whole set of questions. First of all, the order and character of events of July 12, 2003. Cheney, Libby and Martin flew back and forth on AF2 that day, and on the way back to DC they did press strategy. Libby had his phone calls with journalists that day, and presumably for the call with Cooper he was either at his office or at home, Martin was with him and Mayfield joined them. Libby talked with Cooper before the two phone calls with Miller, and I can't recall where Kessler falls in that order. So one set of questions is: were Martin and Mayfield present for the phone calls with Miller? And remember, interestingly, that Fitzgerald seems to have learned that there was a second, longer (37 minute-long) phone call with Miller, after the brief, 3-minute phone call with her. Were they present for the short one and not for the longer? Or neither?

More generally, what did Martin and Mayfield testify to? My own pet obsession with Libby's notes and the related question of whether Libby brought up his June session with Cheney where Cheney told Libby that Plame worked at CPD or whether investigators brought it up with Libby first makes me wonder whether Mayfield, about whom I believe we heard almost or absolutely nothing, might have been the one who deciphered Libby's notes, which were written in his own private shorthand.

Which reminds me that in one of the other filings, there is an effort too make Libby's note from that session sound more innocuous than it does, by inserting a comma that is not in his notes, in order to make it sound like that note would indicate that Plame was an analyst when in fact it does the opposite.

[emptywheel]

lemond

Try that again, I think it should work now.

Jeff

I know Novak never said he only testified about 3--but he did get waivers from only three. So which is it? He testified about Libby without a waiver? Or he testified after the indictment, after making sure his waiver was good?

I kind of think it might be the second of those--that a Libby meeting was the one Kornblut reported on. But that's gut feel.

IIRC, Libby was at home for one of his calls--perhaps his Judy call? I half wonder whether, once they knew they had the cut-out seeded with Novak, whether Dick called in any remaining cut-out attempts (Judy), they made sure to build their alibi with each new call by having people witness the call. In any case, there is still much about that 12 July meeting we don't know, and I suspect if Martin is testifying about it, it will be quite interesting.

And yes, I saw that comma. I will put up a post. But I read the motion to prevent government from introducing anything about Plame's status to be an example of using Fitz' slow release against him--an effort to try to paint Plame as not covered, while also insisting the gov can't refute it. Not bad work, from Libby's lawyers, there.

[emptywheel]

As support for my argument that the Novak-about-Libby subpoena came later--when Libby's surrogate telegraphed to Judy in September 2005 what to say, he told her to say nothing about Novak. Therefore, by at least September 2005, they didn't think Novak had testified about Libby.

Though it's possible they learned about it in discovery. The Bob Novak line describing what Fitz gave on journalists is totally redacted (and almost certainly includes an exclusion of any reference to Armitage). So perhaps that's when they figured it out.

[Jim E.]

EW wrote: "Call the President to the stand, and have him repeat his doubts that no one would go to jail because journalists are so good at protecting their sources. That ought to cover it."

Awesome! That made me laugh. I'm not sure if you meant that merely tongue-in-cheek in a snarky sort of way, or if you are serious about that. Because while I thought it was initially pretty witty in a funny way, it actually seems sort of relevant. Could Fitz introduce Bush's comment without dragging him onto the witness stand? Could Fitz just introduce a piece of a television broadcast showing what Bush said, and say it's relevant in terms of Libby's state of mind? (Or were you just joking?)

[Jodi]

emptywheel,

it is just "lawyer speak."

Trying to make sense of it is very difficult unless you live and breathe it.

I sometimes write up "scopes" and intial contract outlines for what I think a fair arrangement should be for some bit of science/technology.
You know the elements. "We do and get." "You do and get." "This has to happen, here, then, before, after, now, later, OR."

And then I have to wade back through it and get deciphered what the lawyers come up with finally.

One thing though. Is this a Jury trial? Seems kind of technical for a Jury.

[emptywheel]

Re: Novak

I take back my assertion about post-indictment testimony. The passage says 2004.

[Jeff]

I half wonder

What I suspect would look suspicious to Fitzgerald is if Libby spoke uniquely to Miller out of the presence of others on July 12, which would conveniently fit with my hypothesis that Miller was the specific target of OVP's narrow but robust coordinated effort. We know that Fitzgerald did not know until relatively late in the game about the second, longer phone call between Libby and Miller on that day. That may mean that the first call was in the presence of Martin and/or Mayfield, the second not. But that may have a more innocent explanation: Miller was in a cab on her cell phone or something like that for the phone call, so it's perfectly possible she wanted to talk again at length once she got to her home in the Hamptons (which is where the second call took place, I believe).

Can I just mention that I find Jodi's posts to be somewhat annoying with surprisingly consistent regularity?

[margaret]

jodi= smear, gunk on the windshield of fact pursuit.

[freepatriot]

Can I just mention that I find Jodi's posts to be somewhat annoying with surprisingly consistent regularity?

I find jodi's posts to be entirly humorous

It's kinda funny to read an idiot's view

especially from an idiot who is trying to derail the investigation and confuse the issue

jodi is the comic relief. she does posts to make you laugh at her supposed incompetence

jodi is almost as funny as scooter's lawyers and legal claims

when you got nuttin, you just gotta make shit up

anybody notice how jodi is a legal expert but she don't know nothing about jury selection and such ???

how likely is that ???

you just keep thinking jodi, that's what you're good at

[tnhblog]

Libby's lawyers' logic boggles the mind:

Novak's column mentioning Ms. Wilson's CIA employment, because he had never engaged in any effort, concerted or otherwise, to disclose Ms. Wilson's identity, and because he had no reason to believe that the conversations he had with reporters regarding Ms. Wilson were unlawful or wrongful in any respect.

They admit that Libby had conversations in which he disclosed Plame's identity yet have the nerve to assert that he was not engaged in an effort, personal or otherwise, to disclose her identity. Libby's lawyers show true audacity here. It is as if they are openly flouting Libby's crime in order to show that he did not commit the crime. We are truly dealing with malicious hacks here.

[Ardant]

MmmK. Crazy emptywheel.

[JohnLopresti]

Reading these three motions I wondered which witnesses defense was saying in them it would like not to call, or if called, to question very narrowly. Tenet seems like someone likely to answer a few questions too amply for defense's taste, and perhaps too unpredictably. I was trying to recall which year precisely RClarke quit.

There are other overlaps in parallel stories. While Judy was negotiating the confines of Fitzgerald's GJ questions once out of jail, two media entities also were suppressing the domestic wiretap story at administration request. I wonder if there was some barter there. The election had passed; the administration could have turned to a more risk-accepting strategy in the bargaining, having passed the November 2004 test.

It is true Congress was holding hearings on the federal reporter shield draft legislation around the time Judy was jailed in 2005, but I agree there were multiple reasons Judy stayed quiet; the defense motion to suppress most of what Judy might say in the Libby trial seems to highlight that there is a lot more to the risk she presents as a witness than they are openly discussing. This may figure in the current motions' reference to ongoing CIPA filtered documents not incorporated in the public record; namly, the complaining that there are only 2 double-spaced pages summary, so Fitzgerald keeps some plans confidential. In a way, the Jeffress and Cline strategy to evoke the specter of graymail succeeded in eliciting a narrowing of charges; but the counts remain volatile.

I continue to see shades of implicating Rove in the current Byzantine motion to suppress most journalist participation at trial. I even wonder if Kelleher might figure as a witness.

There are some articles of evidence about which I think we continue to have questions; for example, the possibility I think we discussed a while back, that Judy may have yet more notes, more than the dust bunny notebooks, to account for the funny unchronological and seemingly unreferenced terms that appeared as glosses in the already produced notebook(s). Also, there was the timeline discrepancy between the first series of FBI interviews of Libby and the subsequent production of the sheaf of lost emails, which I thought was sourced through FBI, as well; this has got to be an area of interest in Fitzgerald's case.

Just as we had a seesaw for instadeclassify-reclassify legerdermain, with respect to Libby's state of mind, I believe we continue with some mystery about the NIE or abstract of the NIE which played into those divulgations by Libby in various degrees of depth of detail, perhaps running to excessive depth with Judy, although staying within bounds of the NIE abstract with other reporters receiving declassified material in leaks.

The defense seems to be opting for the threat of a media circus to forestall the possibility that prosecution might like to find out more here.

Another parallel would be the civil suit the Wilsons have brought. I would imagine the Libby defense attorneys would be designing the special prosecutor's options as narrow as possible, hoping to have more turbulence when the other case begins its trial.

As you listed the attorneys with barter information whose testimony might be germane if defense should call the prosecutor himself as a witness, in a kind of test of the strength of the attorney client privilege paradigm, the Vinovka Luskin events around the Cooper grand jury testimony also came to mind as offering yet another attorney who was talking to the media; I think viget was interested in this detail at the time.